COPYCENSE

This week’s edition of Clippings features extended commentary on our three Articles of the Week; an update on Radiohead’s online distribution play; Tim O’Reilly analyzing e-book possibilities in the face of the Kindle’s introduction; and two thumbs down for the Copyright Office’s online registration system.

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Articles of the Week

The Iconoclast (News.com). Major Copyright Bill Boosts Penalties, Creates New Agency. Dec. 5, 2007. Intrepid News.com tech reporter Declan McCullagh summarizes the entertainment industry’s latest legislative gambit, called the “PRO IP” bill. All the usual monopoly enforcement and extension concessions are present in “PRO IP,” but the kicker is the creation of a Cabinet-level post that would serve as the president’s principal advisor and spokesman for intellectual property matters, as well as identifying countries that don’t adequately protect IP rights. This is particularly important, since American intellectual property law now is one of America’s chief exports, courtesy of the Trade Representative‘s Special 301 process. Arguably, this new post — which McCullagh says would have an initial budget totaling $25 million — would supplement the Trade Representative’s efforts to make U.S. intellectual property law the global standard.

It does not concern us that the entertainment industry is trying once again to make copyright law even more restrictive than it is; to echo a Chris Rock skit, this is what the entertainment industry is supposed to do. Instead, what concerns us is the ventriloquist-like effect the lobby has on members of Congress, who seem to mindlessly parrot the industry’s propaganda about things like “global competitiveness,” “piracy,” and “economic losses.” The industry’s “evidence,” so much of it without a shred of empirical or objective validity, should not be the basis for public policy. Categories: Bundle of Rights; Legislation & Regulation; Politics & Government.

Eric Bangeman. Colleges Serious About Dealing With Copyright, P2P Issues. Ars Technica. Dec. 5, 2007. Now that we’ve ranted about the entertainment industry’s use of meaningless statistical data, we voice similar concerns about the Brandeis University DMCA survey. Survey studies are like teaching: easy to do, difficult to do well. This study has some holes in it. The first thing that concerns us is the low number of respondents (79); that is too few from which to make reasonable popular generalizations. The second issue that concerns us is the nature of the questions themselves. For example, Question 2 asks “What non-punitive measures have you taken to reduce DMCA complaints?” Two of the possible responses mention “education.” What is copyright “education”? How is it done? How often? Who does it? Are rights and exceptions reviewed in the educational initiative? There are too many questions to answer.

Third, the researcher does not make clear what he intended to measure with the questionnaire. Finally, it alarms us that Question 6 begins with the phrase “If you have a DMCA agent …” If you run a network and do not have a DMCA agent, that is a problem: you’ve lost “safe harbor” protection under Section 512(c). We applaud Brandeis for having the idea and taking the initiative. This is the sort of data educational institutions should be gathering on their own initiative. Unfortunately, the strength of the idea is diminished by weak execution, leading to meaningless data. Ultimately, this survey cannot say conclusively whether or not colleges are serious about dealing with copyright issues. Categories: Computers; DMCA; Education; Networks; Research.

TorrentFreak. Charity Forced to Pay Copyright Fee So Kids Can Sing Carols. Dec. 9, 2007. “Happy Birthday,” the sequel. We can’t imagine this stuff. Categories: International; Music; Licensing & Permissions.

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Quote of the Week

“DRM has little to do with the prevention of piracy and everything to do with holding fair use to ransom.”

— Adrian Kingsley-Hughes.

ZDNet Hardware Blog. Steve Jobs Wants You to Pay $4 to “Space-Shift” DVDs. Dec. 6, 2007. I believe one of the many problems with copyright discourse is there are too many lawyers talking about too many legal things. Too often lawyers make things out to be much more complicated than they are. It’s like you go to law school, and lose every Strunk & White lesson you’ve ever been taught. Very few are able to “make it plain” so that Joe or Jane Consumer understands why this stuff is important not just legally, but societally.

The reason why the copyright industries do so well with the term “piracy” is because the non-lawyer and non-geek can understand it. (Or at least they think they understand it.) Here at the ‘Cense, we believe — and have reported — that the premise of “piracy” (i.e. “piracy” equals lost revenue) is false, and have opined it’s nothing more than an intentional rhetorical twist that has been framed for political and economic gain. Still, we concede it’s a brilliant strategy, if only because copyright lobbyists can frame it as real talk. Similarly, the copyright cabal may disagree with Kingsley-Hughes’ opinion that American consumers already are permitted to make personal copies for free. But whether you agree or not, you must concede his argument is clear. We need much more clarity and “real talk” (as the brothers say out West) and a lot less spin in the ongoing copyright debate. Categories: DRM & Copy Restriction; Film & Video; Fair Use & Other Exceptions.

Clippings

Jon Pareles. Pay What You Want for This Article. The New York Times. Dec. 9, 2007. Times music critic Pareles delves into Radiohead’s .MP3 experiment and its significance in the broader music industry spectrum. Categories: File Sharing, P2P & Downloads; Music; Web & Online.

Peter Burrows. Hey, iTunes, Move Over. BusinessWeek. Dec. 7, 2007. Both BW and Forbes recently have reported about challenges to Apple’s dominance. Both focus on challenges to the iPod and iTunes. Both have been repeating things that have been said for the last four years. As long as the labels continue to move at its current snail’s pace, it will reinforce Apple’s hegemony in the digital music space, forcing them (and others, including Amazon.com) to have to continue to kiss Jobs’ ring. Categories: Mobile Devices; Music.

Ingram 2.0 (via globeandmail.com). Would You Pay an Internet “Tax” for Music? Dec. 5, 2007. Canadian songwriters say they would be fine with P2P so long as the government subsidized them through an Internet tax. This would be in addition to the existing tax on blank media. Here in the U.S., nearly 20 percent of our Internet service cost is taxes. Why would consumers want to pay more, even for musicians? Categories: File Sharing, P2P & Downloads; International; Music; Networks.

O’Reilly Radar. Bad Math Among eBook Enthusiasts. Dec. 5, 2007. The inventor (and trademarker) of the “Web 2.0” moniker shines a light on zealous e-book prognostications in the wake of the Kindle debut. Categories: Books; Mobile Devices.

Judith Evans. Digital Revolution Seen As Threat to Bookshops. FT.com. Dec. 4, 2007. What’s next? Pat Schroeder saying to Congress that the Kindle is to the hardcover what the Boston Strangler is to a woman alone? Publishing executives get paid a lot of money to resolve such problems; they should get their Joe Torre on and manage the situation. Categories: Books; Digitization; Web & Online.

Plagiarism Today. The Copyright Office’s Online Registration System. Dec. 4, 2007. A comprehensive review of the U.S. Copyright Office’s Electronic Copyright Office registration system. A commenter hit the nail on the head when he points out the system should be better than a 3 out of 10 when it has been in development for so long. Categories: Registration; U.S. Copyright Office.

Sidhartha Banerjee. Mounties Claim Major Movie-Piracy Bust. Globeandmail.com (via The Canadian Press). Dec. 4, 2007. The back story can be as important as the main story. In the global scheme of things copyright, the main story is tame and somewhat irrelevant: a 25-year-old gets busted for filming movies in a theater and distributing them online. The movie industry wants you to think this sort of thing occurs everyday; people who run serious counterfeiting rings scoff at making copies in the theater because the quality is poor. No, the counterfeiting rings are getting their copies directly from the studio. (.pdf) The real story here is that the Royal Canadian Mounted Police (RCMP) was the arresting agency, “the first time RCMP has used the Copyright Act to fight alleged distribution of pirated movies on the Internet.” In other words, taxpayer-funded federal law enforcement agencies have become the entertainment industries’ private security agency. The same thing occurred when the Fulton County Sheriff’s Department descended on DJ Drama’s studio in February, accompanied by RIAA investigators. Categories: Film & Video; International; Politics & Government.

Eric Bangeman. DoJ says $222,000 Damages in Capitol v. Thomas Trial Not Unconstitutional. Ars Technica. Dec. 4, 2007. The picture forming should be clear by now. The copyright industries dominate the Special 301 process through the U.S. Trade Representative. The copyright industries request a Cabinet-level copyright czar. The copyright industries seek to tie federal student aid to university copyright enforcement. Given all these signs, it should not be a surprise that the Department of Justice files a brief (.pdf) that requests intervention and supports the RIAA in Jammie Thomas’ appeal on the constitutionality of a $222,000 damage award. Category: Cases & Litigation; File Sharing, P2P & Downloads; Music; Politics & Government.

Charlie Demerjian. MPAA Caught With Its Pants Down. The Inquirer. Dec. 4, 2007. After we finished chuckling at the irony — oh, the irony — of the MPAA being hit with a DMCA takedown notice because it spyware violated the GNU General Public License, we had a striking thought. In a world where copyright might be becoming irrelevant socially (because citizens increasingly don’t believe in it) and legally (because the largest corporations see it as a proxy for control), licensing and trademarks now are the new copyright. Categories: DMCA; Licensing & Permissions; Open Source; Politics & Government.

Rewind: Stories We Missed

(Interesting stories we noticed after we sent previous editions to press.)

Louise Witt. FCC Commissioner Michael Copps vs. “Big Media.” Slate. Dec. 3, 2007. An FCC commissioner since May 2001, Copps has been consistent in his opposition to relaxing media ownership rules. Categories: Broadcasting & Journalism; Legislation & Regulation; Politics & Government.

24 Oranges. Donald Duck Magazine Takes Kids’ Money for Copyright Lesson. Dec. 3, 2007. The music industry exports its “piracy” propaganda to the Netherlands. Categories: Framing & Rhetoric; International.

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